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Whether, in the year 1824 and 1825, the pursuer was employed to erect, and did erect, a chapel at Portobello, in the county of Edinburgh, for the United Associate Secession Congregation, at the price of L.1733, to be paid by instalments; and whether the defenders, or any of them, are indebted and resting owing to the pursuer in the sum of L.388, as the balance of the expense of erecting the said chapel, and of the sum of L.46 : 6 : 4½ for extra work, or of any part of the said sums, with interest on the said sum or sums?
Whether, in the year 1824, the pursuer was employed to fit up, and did fit up, a temporary place of worship for the congregation aforesaid; and whether the defenders, or any of them, are indebted and resting owing to the pursuer in the sum of L.11 : 3 : 4, or any part thereof, with interest thereon, as the expense of fitting up the said place?’
The case was tried three several times. On the first occasion, the defenders obtained a verdict, in consequence of the rejection of a document on the ground of want of stamp. On the second, the Lord President gave a charge to the jury, which was afterwards set aside on a bill of exceptions. Ultimately, on 8th November 1839, the jury returned a verdict for the defenders; and the pursuer, after the verdict had been applied, proposed to refer to their oaths the matters contained in the above, issues.
The defenders objected to the reference being sustained until the whole previous expenses were paid by the pursuer, in conformity with the decision in the case of Clark v. Hyndman and Others, 20th Nov. 1819, F. C. The presumption of law was in favour of the defenders, as they had obtained the verdict. In the present case the pursuer has been already found liable at a particular stage for the previous expenses, as he had produced before the jury an unstamped document, which could not be received.
Lord President .—That no doubt is the justice of the case, and I cannot see how we came to decide otherwise in that case of Hyndman.
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